After Montana Judge Todd Baugh sentenced a 49 year-old school teacher to just 30 days in prison for the statutory rape of a 14 year-old student — a student who subsequently committed suicide — most people who learned of the story reacted in outrage. The editors of the Washington Post’s opinion page, by contrast, decided to respond to this incident by publishing a piece arguing that the teacher’s actions shouldn’t even be a crime — nor should nearly any of what the piece labels as “consensual sexual activity between teachers and students.”

A major thrust of the author’s argument (which we will not link to out of concern that the Washington Post chose to run this piece in a misguided effort to drive traffic to its webpage) is that the very existence of sex between teachers and students suggests that such sex should not be criminalized. According to the piece’s author:

I’ve been a 14-year-old girl, and so have all of my female friends. When it comes to having sex on the brain, teenage boys got nothin’ on us. When I was growing up in the 1960s and ’70s, the sexual boundaries between teachers and students were much fuzzier. Throughout high school, college and law school, I knew students who had sexual relations with teachers. To the best of my knowledge, these situations were all consensual in every honest meaning of the word, even if society would like to embrace the fantasy that a high school student can’t consent to sex. Although some feelings probably got bruised, no one I knew was horribly damaged and certainly no one died. . . .

The point is that there is a vast and extremely nuanced continuum of sexual interactions involving teachers and students, ranging from flirtation to mutual lust to harassment to predatory behavior. Painting all of these behaviors with the same brush sends a damaging message to students and sets the stage for hypocrisy and distortion of the truth. Many teenagers are, biologically speaking, sexually mature. Pretending that this kind of thing won’t happen if we simply punish it severely enough is delusional.

It is certainly true that statutory rape laws have not eliminated sex between teachers and underage students. It is also true that murder laws have not eliminated homicide. That is not an argument for decriminalizing murder.

Moreover, the piece ignores one of the primary reasons why sex between an adult teacher and an underage student is a crime — the tremendous power gulf between the two parties. Even beyond the gulf that often exists in statutory rape cases, teachers wield tremendous authority over students. They have the power to discipline students, to detain students (that’s where the word “detention” comes from), and often to suspend students based on their mere word given to a school official. In the district where I taught, I briefly had the power to literally beat a student with a wooden paddle (a power I never used). The policy was changed to require my school’s dean of students to administer corporal punishment, but he was naturally inclined to side with teachers who asked him to paddle a student. And, of course, all of this ignores the power teachers have over the students in their classrooms to set their grades — a power that can potentially shape the remainder of the student’s future.

Asking public servants entrusted with these awesome powers to not use their charges as a vehicle for their own orgasms is hardly an unreasonable request. Nor should a person who violates this trust be treated as anything other than a serious criminal. Teachers can limit their sex partners to the vast universe of people in the world that they do not wield authority over, and the law generally presumes that they have taken advantage of their power when they choose to do otherwise.

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